East Coast CM Report of Recent Decisions – 2016 Vol. 1

January 1, 2016 / CM Reports

Articles in this report

Bailees Who Purport To Exempt Themselves From All Liability, Even For Their Own Negligence, Run Afoul Of UCC 7-204
In XL Specialty Ins. Co. v. Christie’s Fine Art. Stor. Servs., Inc., 2016 N.Y. Slip Op. 01901 (First Dep’t Mar. 17, 2016), the Appellate Division reversed the lower court’s holding that held that a waiver of subrogation was enforceable and barred the action where the bailment agreement purported to exempt defendant bailee from all liability.

Court Of Appeals Determines That Sidewalk Defect Not Abutting A Landowner’s Property Does Not Necessarily Absolve The Landowner Of Liability
In Sangaray v. West Riv. Assoc., LLC, 2016 NY Slip Op 01002 (Court of Appeals, February 11, 2016), the Court of Appeals reversed an order from the Appellate Division, First Department affirming the trial court’s decision granting summary judgment to landowner Defendant, West River Associates, LLC (“West River”). The Court of Appeals stated that even though Plaintiff tripped on a defect that was not in front of a landowner’s property, that landowner was not necessarily absolved of liability.

Maryland Appellate Court Extinguishes Insurer’s Fire Claim By Applying Spoliation Doctrine In A Ruling Of First Impression
In Cumberland Insurance Group v. Delmarva Power, 2016 Md. App. LEXIS 12 (Md. Ct. Spec. App. Feb. 1, 2016), the Maryland Court of Special Appeals, in an issue of first impression, employed the Spoliation Doctrine and held that Cumberland Insurance (“Cumberland”) could not pursue its claim against Delmarva Power.

New “Shocking” Addition To Labor Law § 240’s Already Broad Reach
In Nazario v. 222 Broadway, LLC, 135 A.D.3d 506, 2016 N.Y. App. Div. LEXIS 246, 2016 NY Slip Op 00251, a construction worker who was injured in a fall on a construction site brought a cause of action against the site’s owner and general contractor alleging violation of New York Labor Law §§240, 241(6) and 200 and common law negligence.

Ready To Launch Or Failure To Launch? Three First Department Decisions Giving Insight As To Whether A Contracting Party Owes A Duty Of Care To Third-Persons Under The Launch A Force Or Instrument Of Harm Exception
Generally, a contractual obligation of a party does not extend tort liability in favor of a non-contracting third-party. In plain terms, a party who asserts a tort claim must prove privity in order to recover against a tortfeasor. The Court of Appeals has, however, carved out three exceptions to this rule.

Second Circuit Addresses Whether Agency Request For Information Constitutes A “Demand” For Purposes Of Claims Made Policy
In Weaver v. AXIS Surplus, 2016 U.S. App. LEXIS 4199 (2d Cir. March 7, 2016), the United States Court of Appeals for the Second Circuit, applying New York law, concluded that an agency letter requesting information and advising of legal consequences of failure to comply constitutes a “demand” for the purposes of a claims made directors and officers liability policy.

The Malfunction Theory: Product Liability’s Saving Grace
Property damage cases arising from a failed product, such as a failed appliance or other item causing a destructive fire, are fairly typical. While a traditional negligence cause of action requires the plaintiff to prove the defendant manufacturer, distributor and/or retailer (collectively referred to in this article as “defendant” or “defendant manufacturer”) breached a duty owed to plaintiff, which then resulted in (or proximately caused) plaintiff’s damages, a sustainable product liability cause of action only requires proof: 1) that the defendant supplied a defective product, and 2) this defect resulted in injury to the plaintiff.

Download this publication as a PDF

  • Chicago

    Illinois 60603

    10 South LaSalle Street

    Chicago, Illinois 60603

    T: 312.855.1010 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • New York

    New York 10005

    28 Liberty Street 39th Floor

    New York, New York 10005

    T: 212.805.3900 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Carl M. Perri

  • Mission Viejo

    California 92691

    27285 Las Ramblas

    Suite 200

    Mission Viejo, California 92691

    T: 949.260.3100 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Florham Park

    New Jersey 07932

    100 Campus Drive

    Florham Park, New Jersey 07932

    T: 973.410.4130 TF: 800.826.3505 F: 973.410.4169 Office Managing Partner: Carl M. Perri

  • Michigan City

    Indiana 46360

    200 Commerce Square

    Michigan City, Indiana 46360

    T: 219.262.6106 TF: 800.826.3505 F: 312.606.7777 Office Managing Partners: Paige M. Neel, Kimbley A. Kearney

  • Appleton

    Wisconsin 54914

    4650 W. Spencer Street

    Appleton, Wisconsin 54914

    T: 920.560.4658 TF: 800.826.3505 F: 920.968.4650 Office Managing Partner:

  • Stamford

    Connecticut 06902

    68 Southfield Avenue

    2 Stamford Landing Suite 100

    Stamford, Connecticut 06902

    T: 203.921.0303 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Matthew J. Van Dusen

  • Tampa

    Florida 33609

    4830 West Kennedy Boulevard, One Urban Center

    Suite 600

    Tampa, Florida 33609

    T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • San Francisco

    California 94111

    100 Pine Street

    Suite 1250

    San Francisco, California 94111

    T: 415.287.2744 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Houston

    Texas 77019

    2929 Allen Parkway

    American General Center, Suite 200

    Houston, Texas 77019

    T: 346.229.4612 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Ramy P. Elmasri

  • Dallas

    Texas 75201

    325 N. Saint Paul Street

    Suite 3100

    Dallas, Texas 75201

    T: 469.942.8635 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Ramy P. Elmasri

  • Boca Raton

    Florida 33434

    7777 Glades Road

    Suite 405

    Boca Raton, Florida 33434

    T: 561.765.5305 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick